Travers v. Chervellera (In re Dowdy)

• Decision Date: 04 November 2021
• Docket Number: 20CA1323
• Citation: 2021 COA 136
• Parties: In re the Estate of Alvin Dowdy, deceased. v. Donna Chervellera, Kristy D. Kruse, Brenda S. Travers, Vickie L. Fevig, Pamela J. Kirby, and Patricia Reagan, Appellees. Daniel Travers, as Personal Representative of the Estate of Alvin Dowdy, Appellant,
• Court: Colorado Court of Appeals

2021 COA 136

In re the Estate of Alvin Dowdy, deceased.

Daniel Travers, as Personal Representative of the Estate of Alvin Dowdy, Appellant, v. Donna Chervellera, Kristy D. Kruse, Brenda S. Travers, Vickie L. Fevig, Pamela J. Kirby, and Patricia Reagan, Appellees.

No. 20CA1323

Court of Appeals of Colorado, Fourth Division

November 4, 2021

El Paso County District Court No. 20PR7 Honorable Vincent N Rahaman, Magistrate

Announced November 4, 2021 Gordon J. Williams, P.C., Gordon J. Williams, Colorado Springs, Colorado, for Appellant

No Appearance for Appellees

Kirtland & Seal, L.L.C., Michael A. Kirtland, Colorado Springs, Colorado, for Amicus Curiae Colorado Chapter National Academy of Elder Law Attorneys

OPINION

FREYRE, JUDGE

¶ 1 In this probate case, we are asked to interpret Colorado's family allowance statute, section 15-11-404, C.R.S. 2021, and to decide, as a matter of first impression, whether a surviving spouse is entitled to receive a family allowance when the decedent has no minor or dependent children. We conclude that the statute's plain language entitles a surviving spouse to receive a family allowance even when the decedent has no minor or dependent children.

¶ 2 Because the district court concluded otherwise, Mary Dowdy, the surviving spouse, and Daniel Travers, the estate's personal representative (PR), appeal the district court's order denying her request for a family allowance. We reverse and remand the case for further proceedings.

I. Background

¶ 3 Alvin Dowdy died testate on September 25, 2019, and was survived by his wife and six adult children, Donna Chervellera, Kristy D. Kruse, Brenda S. Travers, Vickie L. Fevig, Pamela J. Kirby, and Patricia Reagan. The will devised ten acres of an eighty-acre parcel of land to each of his children^[1] and ten acres to his wife. The remainder of the estate, including real and personal property, was "to be dispersed, disposed or otherwise handled by [his] Personal Representative."

¶ 4 Before Daniel's^[2] formal appointment, on April 6, 2020, Mary filed a timely request for exempt property and a family allowance with the district court, and she petitioned for an elective share. On the advice of counsel, Daniel filed a notice of disallowance of claims for a family allowance based on a 2018 Jefferson County District Court order in an unrelated case finding that a surviving spouse was not entitled to a family allowance because the decedent in that case had no minor or dependent children.^[3]

¶ 5 In a thorough written order, the district court found that Mary qualified for the exempt property allowance under section 15-11-403, C.R.S. 2021. However, relying on its perception of the plain language of section 15-11-404(1), the court found that she did not qualify for a family allowance because her husband had no minor or dependent children. Specifically, the court interpreted the word "and," located in "decedent's surviving spouse and minor children who the decedent was obligated to support," § 15-11-404(1), to entitle a surviving spouse to the family allowance only when the decedent had minor or dependent children. Because the decedent has neither, his surviving spouse did not qualify for a family allowance.

¶ 6 The court also considered changes to the statute. It found that the General Assembly's removal of the phrase "[i]f there are no surviving children under twenty-one years of age and no dependent children, the allowance is payable to the surviving spouse" from section 15-11-403 in 1994, and its replacement with the words "surviving spouse and surviving minor children" evidenced an intent to permit a family allowance only when the decedent has minor or dependent children. See Ch. 178, sec. 3, § 15-11-404, 1994 Colo. Sess. Laws 996. Accordingly, the district court granted Mary's request for the exempt property allowance, but it denied her request for a family allowance.

II. Family Allowance

¶ 7 Mary and the PR contend that the district court misconstrued section 15-11-404(1) and that a surviving spouse may be awarded a family allowance even when the decedent is not survived by minor or dependent children. For the reasons explained below, we agree.

A. Standard of Review and Applicable Law

¶ 8 We review a court's ruling denying a family allowance for an abuse of discretion. In re Estate of Dandrea, 40 Colo.App. 547, 550, 577 P.2d 1112, 1114 (1978). A court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair, or when its ruling is based on an erroneous understanding of the law. Sidman v. Sidman, 2016 COA 44, ¶ 29. We defer to the court's factual findings and review its legal conclusions de novo. In re Marriage of Garrett, 2018 COA 154, ¶ 9.

¶ 9 We review a court's interpretation and application of the Colorado Probate Code de novo. Beren v. Beren, 2015 CO 29, ¶ 11. When interpreting a statute, our primary objective is to ascertain and give effect to the intent of the General Assembly. Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004). If more than one statute addresses an issue, we must construe the related provisions as a whole and read the statutes together. Foiles v. Whittman, 233 P.3d 697, 699 (Colo. 2010). We begin with the plain language of the statute, giving the language its commonly accepted and understood meaning. Id. Where the language is unambiguous, "we do not resort to further rules of statutory construction to determine the statute's meaning." Id.

¶ 10 The Colorado Probate Code provisions governing exempt property and family allowances are modeled after part 2 of the Uniform Probate Code. See In re Estate of Gadash, 2017 COA 54, ¶ 21. We liberally construe and apply the code "to promote its underlying purposes and policies." § 15-10-102(1), C.R.S. 2021. As relevant here, the family allowance statute provides,

[i]n addition to the right to exempt property, the decedent's surviving spouse and minor children who the decedent was obligated to support and children who were in fact being supported by the decedent are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of administration, which allowance may not continue for longer than one year if the estate is inadequate to discharge allowed claims. . . . It is payable to the surviving spouse, if living, for the use of the surviving spouse and minor and dependent children; otherwise to the children or persons having the children's care and custody. If a minor child or dependent child is not living with the surviving spouse, the allowance may be made partially to the child or the child's guardian or other person having the child's care and custody, and partially to the spouse, as their needs may appear.

§ 15-11-404(1). As well, the family allowance "is exempt from and has priority over all claims except claims for the costs and expenses of administration and reasonable final disposition and funeral expenses . . . ." Id.

¶ 11 The family allowance statute must be read in conjunction with the exempt property allowance statute, § 15-11-403, and the definition of "augmented estate" in the elective share statute, § 15-11-202(1), C.R.S. 2021. In re Estate of Novitt, 37 Colo.App. 524, 527, 549 P.2d 805, 808 (1976). The augmented estate is "the estate reduced by funeral and administration expenses, exempt property allowances, family allowances, and enforceable claims . . . ." Id. Thus, the right to exempt property and family allowance is not charged against the augmented estate, but, instead, is in addition to the surviving spouse's elective share of the augmented estate. § 15-11-202(3). The purpose of the augmented estate is, in part, to ensure that a surviving spouse receives adequate financial support. In re Estate of Grasseschi, 776 P.2d 1136, 1139 (Colo.App. 1989). Similarly, the underlying purpose of the family allowance statute is to provide maintenance support to the decedent's family and to provide for a period of adjustment while the estate is undergoing administration. In re Estate of Dandrea, 40 Colo.App. at 550, 577 P.2d at 1114; see also In re Estate of Plazza, 34 Colo.App. 296, 303, 526 P.2d 155, 159 (1974) (The policy of providing statutory allowances to a widow "is to protect the surviving spouse during the period until a final distribution of the estate can be made.").

¶ 12 Additionally, the definition of "family" is not limited to parent-child relationships but also includes "persons connected by blood, by affinity, or by law . . . ." Black's Law Dictionary 721 (11th ed. 2014). Thus, the family includes persons connected by lawful marriage even if there are no children. Indeed, numerous cases have recognized that a surviving spouse without minor or dependent children constitutes a "family" under family allowance statutes. See H. H. Henry, Annotation, Who is Included in Term "Family" or "Household" in Statutes Relating to Family Allowance or Exemption Out of Decedent's Estate, 88 A.L.R.2d 890 (1963) (citing eleven cases in five jurisdictions recognizing that a surviving widow with no children constitutes a "family" for the purposes of a homestead exemption and a family allowance).

B. Analysis

¶ 13 Construing the family allowance statute broadly and in the context of the Colorado Probate Code as a whole, we conclude for three reasons, that the plain language of section 15-11-404(1) identifies three distinct groups of survivors who are entitled to a family allowance: (1) the decedent's surviving spouse; (2) the minor children who the decedent was obligated to support; and (3) any children who were in fact being supported by the decedent, including adult dependent children. See Black's Law Dictionary at 531 (defining dependent as "[s]omeone who relies on another for support"); ...